R v FAZAH

Victim impact statement 27Rasa Fazah was told of the death of her child on 2 January 2011. Police described her reaction as "overwhelming", screaming over and over, "Not my daughter, not my daughter." She told police that the only reason she had stayed with the offender was for the child's sake. She begged police to take her to Maria and said that she wanted to die too. 28At the sentence proceedings she read a victim impact statement. It must have been very difficult for her. As one would expect, she was very emotional and she had to pause from time to time to compose herself before she could continue. Nevertheless, she persevered with courage and dignity. 29As one might also expect, the focus of her statement was upon the loss of her daughter, not her own injuries. She said, "I have scars all over me, my face, my hands and my body that I can't even look at myself but these scars are not as deep as the emotional pain." She went on to describe eloquently her love of Maria, her grief and outrage at the child's violent death, and the enduring effects that this tragedy has had upon her life. I expressed my deepest sympathy to her at the time, and I do so again now.

Subjective case 30The offender is now 35 years old. He has no previous convictions. His background is to be found in the reports of Dr Usman Malik, a psychiatrist who has been treating him in custody, and Dr Iliana Hepner, a neuro-psychologist who examined him for these proceedings. I also received evidence from his older sister, Nasiba Sediqi, whom he has believed to be his mother. She had brought him up in her household since he was an infant, apparently because their mother was sick and she had to assume responsibility for him. She regards him as her son. 31The offender had a difficult upbringing. He was born in Kabul, Afghanistan. His family belonged to the Tajik community, a minority group within the larger Afghani community. He demonstrated learning difficulties at school. Nevertheless he was educated to year 12 and entered university to study journalism. However, he did not fare well at university either. 32In 1993, when he was in his early teens, he set fire to a shop in Kabul. It seems that he later had no memory of having done so, and the matter was treated as a medical problem. He was diagnosed as suffering from epilepsy, and there was a history of seizures from time to time thereafter. 33He experienced wartime conditions throughout his upbringing in Kabul. There were attacks by rockets and bombs in the area where the family lived, and his sister observed this to affect him badly. In the later 1990s, while he was at university, he was captured by the Taliban. He was held by them until he escaped in 2003. During his incarceration he was tortured. On one occasion, he was put in a room with dead bodies when they thought he had died secondary to the injuries he sustained as part of the torture. One another occasion he was present when two prisoners either side of him were shot dead. 34During this period he lost contact with his family, who had migrated to this country in 1999. Contact was restored after he escaped, when Ms Sediqi found him in Pakistan and set in train arrangements for him to join them in Australia. 35Here, he obtained some trauma counselling through the NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors (STAARTS). He also saw a Centrelink psychologist and was put on a disability support pension. He worked intermittently as a security guard. 36Dr Malik saw the offender when he first came into custody. He described him as "vague and perplexed", apparently unable to answer basic questions. He also appeared "regressed and child-like at times. " In 2012 he suffered a stroke, which required rehabilitative treatment. There were incidents of self-harming behaviour and what the doctor described as "obvious levels of psychological distress." He was transferred to a specialist unit at Bathurst for psychotherapy, from which he has benefited greatly. 37Dr Malik diagnosed the offender as suffering from Post Traumatic Stress Disorder "due to the war, kidnapping and torture he endured in Afghanistan." The condition manifests as "depression, flashbacks, periods of dissociation, and self-harming behaviour, including suicidal thoughts and plans." 38While noting the benefit of psychotherapy, Dr Malik saw the offender's prognosis as "poor while he is in gaol due to aspects of his prior imprisonment over many years by the Taliban, and how his current isolation and imprisonment in gaol reminds him of that past traumatic experience." 39Dr Hepner saw the offender in January of this year. She summarised the results of her testing, conducted across two sessions with the assistance of an interpreter, as follows: "Findings of neuropsychological assessment reveal evidence of impaired performance relative to age expectations in his intellectual function involving Perceptual Reasoning, attention, speed of information processing, new learning and memory, basic reading and arithmetic skills, and frontal executive functions. His responses on a self-report questionnaire indicate significant problems with global executive functions in his everyday environment, including problems with behavioural regulation, emotional control and higher level problem solving. He also reports elevated symptoms of anxiety and depression. Mr Fazah performed adequately on measures of test taking effort and there was no evidence during the examination to suggest that he was deliberately attempting to present himself in an impaired manner." 40Dr Hepner referred to the history of the offender's problems with cognition and behavioural/emotional control from his childhood and to his experience of torture at the hands of the Taliban, which included beatings to the head and having his head held under water. She thought it likely that this had caused cumulative brain damage as the result of repeated traumatic brain injury (TBI) and/or hypoxic episodes. She referred to his symptoms of PTSD in similar terms to those described by Dr Malik. She also noted that the 2012 stroke might have had an impact on his current level of cognitive function. 41Dr Hepner concluded: "Taken together, the cognitive impairments and problems with executive functions in the everyday environment (eg, behavioural regulation, emotional control and higher level problem solving), as detected on current assessment would be explainable in the context of Mr Fazah's complex background history including difficulties with cognition and behavioural/emotional control dating back to childhood, the psychological (PTSD) and physical (repeated TBI and/or hypoxic episodes) effects of being tortured, his psychiatric condition and medullary stroke. From the history provided, and on balance, the psychological and physical effects of being tortured would have likely compounded any pre-existing problems with cognition and behavioural/emotional control, and likely increased his proneness to impulsivity and poor judgement. The extent to which this may have impacted on his behaviour at the time of the index offence, however, it is not possible to say."

Sentencing 42The seriousness of the murder of the child, Maria hardly needs emphasis. The gravity with which the murder of children is viewed is reflected in the standard non-parole period for that crime of 25 years rather than the period of 20 years applicable to murders generally. The offender inflicted a number of stab wounds upon an innocent 2 year old child, to whom he stood in the most important position of trust of all. The conclusion that he intended to kill her is irresistible. 43The offence of wounding his wife with intent to cause her grievous bodily harm is a serious one of its kind. The offender ceased his attack upon her only because of the intervention of the courageous Mr Tran. She suffered significant and enduring physical injuries and, plainly enough, the attack on her has contributed to the serious psychological state which she continues to suffer as a result of the incident as a whole. The effects of that psychological injury are set out in a portion of a notice of determination by the Victims' Compensation Tribunal, part of the Crown bundle, exhibit A. 44I have referred ([6] above) to an occasion earlier in the relationship when the offender threatened his wife that, in the event of further dissention between them, he would kill her, their child and himself. The Crown prosecutor did not suggest that the present offences were an attempt to carry out that threat. What occurred was spontaneous, not premeditated, and I accept her characterisation of the incident as a very violent outburst by the offender, enraged by behaviour of his wife of which he did not approve, against the background of a controlling and sometimes violent relationship. However, I am troubled by the Crown prosecutor's further submission that his killing of the child was intended as the "ultimate injury" to his wife. That is an inference which might be drawn but I am not satisfied beyond reasonable doubt that it should. I accept the submission of the offender's counsel, Mr Winch, that he was in a state of "high arousal and uncontrolled emotions" during which he went back to the unit, lashed out at the child and then at himself. I am unable to determine beyond reasonable doubt what might have been his motive for his attack on the child. 45Some light is cast upon his behaviour, both at the time of the offences and throughout his relationship with his wife, by his background and, in particular, his distressing experience of war torn Afghanistan and of captivity under the Taliban. It would seem from the report of Dr Hepner that that background has had cognitive effects, although allowance must be made for the fact that she assessed him after the 2012 stroke. More important are its effects on his behavioural and emotional control and his propensity to impulsivity and poor judgment. Dr Hepner did not attempt to assess the extent to which this might have borne upon his behaviour at the time of the offences. I am satisfied that it had some effect. I accept that it bears upon the issues of moral culpability and general deterrence, although not to a marked degree. 46While the offender has not expressed remorse for his crimes, I accept Mr Winch's submission that he demonstrated remorse by the injuries which he inflicted upon himself, which appear to have been a serious attempt at suicide, and by his pleas of guilty. In the earlier stages of these proceedings there was an issue as to his fitness to stand trial, and he entered those pleas promptly after that issue was resolved. The Crown prosecutor very properly acknowledged that he is entitled to the full benefit of their utilitarian value. 47He is entitled to a measure of leniency because of his lack of any criminal history and his deeply troubled background. I also take into account the fact that his psychological state arising from his period as a prisoner of the Taliban will make his experience of prison more distressing. His prospects of rehabilitation are not easy to assess but I think that they are reasonable. He appears to be responding to psychiatric treatment and he enjoys the continuing support of his sister and other members of his family. Clearly, upon his release he would benefit from an extended period of conditional liberty, subject to supervision and the sanction of parole. 48In relation to each offence regard must be had not only to the maximum sentence prescribed but also the standard non-parole period, which is to be approached in the manner explained by the High Court in Muldrock v The Queen [2011] HCA 39, 244 CLR 120 and now enshrined in the recently amended s 54B of the Crimes (Sentencing Procedure) Act 1999. Clearly, there is good reason to fix a significantly lower non-parole period in each case. Although the two offences were part of the same incident, partial accumulation of sentence is necessary to reflect their criminality. 49While the offender is entitled to a reduction of sentence for each offence because of the utilitarian value of his plea of guilty, I do not propose to quantify that reduction as a percentage. For the murder I would have imposed a sentence of the order of 30 years but, in recognition of the plea, I shall reduce that to 24 years. I believe that any greater reduction would result in a sentence inadequate to mark the gravity of the crime. In like manner, for the offence of wounding with intent I shall reduce what would otherwise have been a sentence of 9 years to 7 years. In respect of each offence I shall fix a non-parole period at the statutory proportion (reduced to a round figure in the case of the offence of wounding with intent). Accordingly, the sentence for the murder will be 24 years with a non-parole period of 18 years, and for the wounding with intent a term of 7 years with a non-parole period of 5 years. 50I shall accumulate the sentences by 2 years, producing an aggregate sentence of 26 years with an effective non-parole period of 20 years. Those figures preserve the statutory proportion, again in round figures. While there is ample material to establish special circumstances which might justify a departure from that proportion, the offender has the benefit of parole eligibility for 6 years and, here also, any lesser minimum term would be insufficient to reflect his criminality. 51Farden Fazah, for the wounding of your wife with intent to cause her grievous bodily harm you are sentenced to a non-parole period of 5 years, to commence on 1 January 2011 and to expire on 31 December 2015, and a balance of term of 2 years, to commence on 1 January 2016 and to expire on 31 December 2017. For the murder of your daughter, you are sentenced to a non-parole period of 18 years to commence on 1 January 2013 and to expire on 31 December 2030, and a balance of term of 6 years, to commence on 1 January 2031 and to expire on 31 December 2036. You will be eligible for release on parole on 31 December 2030, and the aggregate sentence will expire on 31 December 2036.

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